Opinion
23-CV-5 (JGLC) (BCM)
02-20-2024
MIGDALIA NIEVES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO THE HON. JESSICA G. L. CLARKE
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Migdalia Nieves, also known as Migdalia Nieves Morales, filed this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying her application for Supplemental Security Income (SSI). For the reasons that follow, I recommend that the decision of the Commissioner be reversed and that the case be remanded for the limited purposes of (i) determining the onset date of plaintiff's disability and (ii) calculating benefits.
I. BACKGROUND
Plaintiff was born on June 2, 1972. Certified Administrative Record (Dkt. 10) (hereinafter "R. __") 70. She attended school through the eighth grade, in Puerto Rico, and came to New York in 1999. (R. 13.) In January and February 2015, she packed candies at a chocolate factory. (R. 1314, 79, 332, 398). Before that, she worked at a garment factory for approximately one week in 2012 (R. 15, 332); worked at McDonald's for six months in 2005 and 2006 (R. 15-16, 79, 332); and worked as a hotel housekeeper for approximately eight months, cumulatively, between 2000 and 2003. (R. 16, 78, 332.) At various points, she has lived with her two children and with a friend. (R. 12.) Since 2020, she has had the assistance of a part-time home health aide. (R. 54-56.)
Plaintiff applied for SSI on April 18, 2017, alleging disability since August 2, 2015, due to depression, fibromyalgia, acute gastritis, mild asthma, high blood pressure, and hypertension. (R. 70-71.) Her claim was initially denied on June 29, 2017. (R. 70-80.) After a video hearing on March 15, 2019 (R. 7-39), Administrative Law Judge (ALJ) Susan Smith issued a written decision, dated May 10, 2019, determining that plaintiff was not disabled within the meaning of the Act. (R. 85-94.) On April 7, 2020, the Appeals Council vacated ALJ Smith's decision and remanded for "[f]urther evaluation of the medical necessity of an assistive device," noting that it was unclear from the record whether plaintiff had been prescribed an electric wheelchair and, if so, whether it was necessary. (R. 101.) Additionally, the Appeals Council directed the ALJ to further evaluate plaintiff's prior work history, "to determine whether [she] has any past relevant work that she is capable of performing." (R. 101-02.)
On May 19, 2021, plaintiff appeared at a second video hearing, this time before ALJ Lori Romeo. (R. 40-69.) During the 2021 hearing, the ALJ heard testimony from plaintiff and from Vocational Expert (VE) Courtney Olds. (R. 59-68.) In a written decision dated November 24, 2021 (the Decision) (R. 108-124), ALJ Romeo determined that plaintiff was not disabled within the meaning of the Act. On November 3, 2022, the Appeals Council denied review (R. 1-5), rendering the ALJ's determination final. This action followed.
II. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Treating Providers
During the relevant period, plaintiff was treated at the William F. Ryan Community Health Center (Ryan Health), Community Health Physical Therapy (Community Health), Mount Sinai-St. Luke's Hospital (Mt. Sinai), and Metropolitan Hospital Center (Metropolitan Hospital). The sections below summarize the medical evidence relevant to plaintiff's claimed impairments.
I. Ryan Health Center
Since at least October 14, 2015, plaintiff has been treated at Ryan Health for a variety of chronic ailments. By 2019 - when she appeared before ALJ Smith - she had been diagnosed with hypertension, asthma, neck pain, type 2 diabetes mellitus, depression, fibromyalgia, dry eye, presbyopia, and cavus deformity of the foot. (R. 625.)
On April 18, 2017, plaintiff presented to Shilpkumar Arora, M.D., with "normal sensation" and "normal motor strength" but "pain in all over on touching." (R. 454.) Dr. Arora diagnosed fibromyalgia, along with acute gastritis, essential hypertension, mild intermittent asthma, and major depressive disorder, and prescribed medications these ailments. (R. 452-53.)Additionally, to confirm his fibromyalgia diagnosis, Dr. Arora referred plaintiff to neurology and prescribed two lab tests (for ANA and anti-CCP antibodies) to rule out autoimmune diseases. (Id.)
Plaintiff's medications, at that time, included Naproxen (a non-narcotic pain medication) and Baclofen (a muscle relaxant) for her fibromyalgia; Pantoprazole Sodium (a proton pump inhibitor) for her gastritis; Chlorthalidone (a diuretic) and Lisinopril (an ACE inhibitor) for her hypertension; an asthma inhaler; and Duloxetine (a serotonin-noradrenaline reuptake inhibitor also sold under the brand name Cymbalta), used to treat both depression and nerve pain. (R. 452-53.)
A positive ANA test signifies an autoimmune reaction, which could indicate "lupus, rheumatoid arthritis or scleroderma." Mayo Clinic, ANA test, https://www.mayoclinic.org/tests-procedures/ana-test/about/pac-20385204 (all websites last visited Feb. 20, 2024). The presence of anti-CCP antibodies also suggests rheumatoid arthritis. Mayo Clinic, Rheumatoid arthritis, https://www.mayoclinic.org/diseases-conditions/rheumatoid-arthritis/diagnosis-treatment/drc-20353653.
On July 7, 2017, during a scheduled appointment at Ryan Health, plaintiff presented with dizziness, weakness, and chest pain. (R. 599.) She was referred to the Mount Sinai emergency department (ED) for further assessment. (Id.)On July 11, 2017, after her discharge from the ED, she followed up with Dipal Patel, M.D. at Ryan Health, reporting pain in her legs, upper extremities, back, and neck. (R. 596.) Naproxen provided only mild relief. (Id.) Palpation of her back and extremities elicited pain. (Id.) Dr. Patel assessed "diffuse pain . . . possibly due to fibromyalgia," and referred plaintiff to pain management and rheumatology. (Id.) On July 12, 2017, she was tested for anti-CCP antibodies, ANA, and C-reactive Protein (another screening test for autoimmune diseases). (R. 592.) All three tests were negative. (Id.)
The administrative record confirms that plaintiff was treated at Mount Sinai that day (R. 101214), but does not include any ED treating notes.
The C-reactive Protein Test can "[h]elp diagnose a chronic inflammatory disease, such as rheumatoid arthritis or lupus." Mayo Clinic, C-reactive protein test, https://www.mayoclinic.org/tests-procedures/c-reactive-protein-test/about/pac-20385228.
On December 12, 2017, at another Ryan Health appointment, Aditi Chincholi, M.D. noted plaintiff's "[c]onstitutional good general state of health, good exercise tolerance," and lack of chest pain or palpitations. (R. 581.) At the same visit, however, Dr. Chincholi wrote that plaintiff was in the ED the night before for "pain which was not controlled" (R. 581), and was "here post ERDC complaining of worsening and recurrent pain," which was felt "'all over' without any clear exacerbating factors." (R. 582.)Plaintiff reported that she "spends most of her time in bed," and "wakes up with a lot of pain." (R. 581.) Dr. Chincholi again referred plaintiff to neurology and rheumatology, due to her "chronic pain disorder," ordered blood tests to assess her type 2 diabetes, and noted that plaintiff "likely needs Psychiatric evaluation" due to her depression and mood disorder, which "may be contributing to her presentation." (R. 581-82.)
The administrative record does not include any other notes concerning plaintiff's ED visit on December 11, 2017.
On April 2, 2018, plaintiff received a "[d]iabetic foot exam" at Ryan Health. (R. 571.) Glenroy M. Aska, M.D. diagnosed a cavus deformity (unusually high arches), but noted that the foot pain that plaintiff complained of (to the outside of both feet) was "not consistent with clinical exam." (Id.)
On July 16, 2018, Ryan Health case manager Judith Aiges wrote that Erica Vero, M.D., wanted her to "explore issue of [an] electric wheelchair" for plaintiff. (R. 561.) Dr. Vero "had written a prescription," because plaintiff "was going to Puerto Rico on Friday and wanted to be able to use the wheelchair to [sic] up and down the hills there," but Dr. Vero "said that it would be difficult at this point to write a letter of necessity for the wheel chair because that is not indicated for treatment of fibromyalgia." (Id.) Additionally, Dr. Vero wanted to perform more tests and have plaintiff "follow through on the rhumotologist [sic] appointment that she missed." (Id.) Plaintiff did not obtain a wheelchair at that time. On August 21, 2018, after her return from Puerto Rico, plaintiff reported that "she did some walking, but now was in pain." (R. 562.)
On September 14, 2018, plaintiff attended the first of a series of appointments with Alyson Salling, F.N.P. (R. 558-60.) She reported "[n]eck and bilateral shoulder pain," as well as "bilateral leg pain." (R. 558.) Nurse Salling observed a "depressed affect," a "slow altered gait," and that "[p]ressure applied to areas of described pain are tender." (R. 559.) Plaintiff's depression screening on the PHQ-9 resulted in a score of 15 ("moderately severe depression"). (R. 558.) Nurse Salling also noted plaintiff's diagnoses of fibromyalgia, moderate persistent asthma, and type 2 diabetes; urged plaintiff again to follow up with a rheumatologist; placed an order for a wheelchair; and provided plaintiff with a written wheelchair prescription. (R. 559-60, 519.) By this time plaintiff's medications included Gabapentin (an anticonvulsant also used for nerve pain), Metformin (for diabetes), and Fluoxetine. (R. 559-60.)
On December 14, 2018, Nurse Salling saw plaintiff again. (R. 466-70, 524-25.) She recorded that plaintiff was hospitalized on October 7, 2018 "for dizziness and was told [she] had anemia and 'problem with kidney.'" (R. 524.)Plaintiff reported bilateral leg pain that on some days "extends up back and in neck." (Id.) Nurse Salling wrote:
The administrative record does not appear to include any ED treating notes for plaintiff's October 7, 2018 visit.
Ms. Nieves continues to request healthcare provider support for an electric wheelchair. She experiences a great deal of pain when walking and finds it hard to get to appts and do grocery shopping. As discussed with Ms. Nieves I think a
wheelchair would only further disable her and harm her overall health. I recommend PT, social work, and continued consult with rheumatology at this time.(R. 525.)
On January 23, 2019, Nurse Salling noted that plaintiff was again hospitalized at Mount Sinai, on December 24, 2018, for acute kidney injury and anemia. (R. 549.)By this time plaintiff's prescriptions included a TENS (transcutaneous electrical nerve stimulation) pain relief device. (R. 552.) Plaintiff saw Nurse Salling again on April 18 and May 24, 2019. (R. 678, 674.). At the April visit, plaintiff stated that she was seeing a rheumatologist at Mount Sinai, and was in a "good mood," although she reported poor sleep and pain in her feet. (R. 678-79.) At the May appointment, plaintiff's depression screening on the PHQ-9 resulted in a score of 24 ("severe depression"), and she reported lower back pain, bilateral shoulder pain, and neck pain. (R. 674.) However, Nurse Salling observed a "normal gait." (R. 675.)
The administrative record does not appear to include any ED treating notes for plaintiff's December 24, 2018 visit. However, her discharge instructions, dated December 26, 2018, are in the file, and confirm that she was hospitalized for fibromyalgia, diabetes, stage 2 chronic kidney disease, acute kidney injury, and hypertension. (R. 475.)
On August 9, 2019, at an appointment with Mindy Lee, F.N.P., plaintiff complained of generalized pain, which she rated 8/10, and "request[ed] [a] walker for support while walking as pain occurs after 2 blocks." (R. 760.) She also presented Nurse Lee with "M11Q forms for assistance with household chores as patient is in too much pain for certain tasks[.]" (Id.)Five days later, Nurse Lee completed the forms, noting that plaintiff was diagnosed with fibromyalgia and peripheral neuropathy and stating, "Patient w/ chronic pain syndrome/fibromyalgia, causing too much pain for patient to carry out housekeeping tasks effectively." (R. 630-632.) On the same form, Nurse Lee wrote that plaintiff needed a walker, and that it had been ordered. (R. 632.)
Form M11Q is a New York City Human Resources Administration form, entitled "Medical Request for Home Care," which requires a medical professional to describe a patient's medical condition. See https://www.nyc.gov/assets/hra/downloads/pdf/services/micsa/m11q.pdf.
On November 8, 2019, at another appointment with Nurse Lee, plaintiff requested a prescription for a "power chair" and reported persistent cramping in her legs and difficulty walking. (R. 756.) Nurse Lee noted that plaintiff "has used rollator but [it] causes arms/shoulder pain, requesting power chair. Advised patient that it is important to keep walking and to get DM [diabetes mellitus] under control." (Id.) At the same visit, plaintiff reported "palpitations, fainting during hot showers, has fallen twice." (Id.)
On January 31, 2020, Nurse Lee reported that plaintiff was "able to do usual activities" with "no fatigue," and observed "no weakness, no numbness." (R. 741-42.) She also observed that plaintiff had a "slow gait," used a "cane/walker." (R. 743.) On examination, plaintiff displayed "tenderness at lumbar paraspinal muscles." (Id.)
2. Mount Sinai
Plaintiff began treatment at Mount Sinai on October 19, 2016, when she presented for an appointment with Shanna Patterson, M.D., with hand numbness and cramps. (R. 460.) She underwent EMG (electromyography) testing on December 5, 2016, to look for the cause of her "generalized myalgias and hand numbness." (R. 456.) The testing revealed that "[a]ll muscles examined have normal activity at rest and with needle movement," but that "[m]otor unit recruitment is limited by pain in all muscles examined." (Id.)
Plaintiff was referred to Christine Stahl, M.D., in General Neurology, on April 11, 2018. (R. 832.) Plaintiff reported "diffuse pain," including numbness and tingling in her arms and legs, and a burning sensation in her hands and feet, accompanied by "general weakness." (R. 832-33.) She reported feeling "pain in entire back [and] limbs, and difficulty with bending over due to pain and stiffness." (R. 833.) She had "trouble holding grocery bags and opening cars and walking long distances." (R. 832.) On examination, plaintiff displayed "strength 5/5 throughout," but decreased sensation in a stocking-glove distribution. (R. 834.) Her gait was "[n]arrow based, steady, though somewhat slow as [she] appears to be cautiously walking 2/2 [secondary to] pain." (Id.)
At a neurology appointment on October 3, 2018, plaintiff reported "continued severe pain in neck and shoulders down arms and into lower back and legs." (R. 804-05.) She told neurologist Benjamin Brush, M.D., that massage treatment from a physical therapist helped, but "only while she is getting massaged." (R. 805.) Dr. Brush concluded that "her symptoms likely all stem from fibromyalgia," and that while it was possible there was "a contribution from small fiber neuropathy," this was already being treated with Gabapentin. (R. 807, 808.) Plaintiff was instructed to "follow up with the Rheumatology team . . . to best manage your fibromyalgia." (R. 808.)
On December 11, 2018, plaintiff saw rheumatologist Anna Kazaryan, M.D., reporting that she "still experiences total body pain," as well as "significant fatigue and daily stiffness." (R. 768.) On examination, Dr. Kazaryan observed "[d]iffuse myofascial pain," but no synovitis, ligament laxity, or joint tenderness. (R. 769.) The rheumatologist assessed "Fibromyalgia, uncontrolled," with no inflammatory or autoimmunity features. (R. 770.) She increased plaintiff's night-time dose of Gabapentin, continued her on Duloxetine (Cymbalta), and encouraged plaintiff to exercise and seek a therapist "to address underlying depression, which contributes to her uncontrolled body pain." (Id.)
At a follow-up visit on November 7, 2019, plaintiff reported "foot pain on both sides, worse on R, associated with burning," but that "[o]verall she feels improved w/ cymbalta and gabapentin." (R. 780.) Rheumatology fellow Michael Kaplan, M.D., noted again that plaintiff's primary diagnosis was fibromyalgia, for which she had established care at Mount Sinai in December 2018, and that her "[s]econdary etiology work up" was "thus far negative." (R. 780.) He advised that plaintiff return to "PT which has helped her quite a bit." (R. 782.)
On October 6, 2020, plaintiff saw rheumatologist Margrit Wiesendanger, M.D., at Mount Sinai. (R. 784.) Plaintiff reported "chronic low back pain that may radiate up the spine" and stated that she "has been using a rolling walker since about summer 2019, because she is unable to either sit or stand/walk for much time[.]" (Id.) Plaintiff also "has vertigo and lightheadedness, and she fell twice in her bathroom in 2019." (Id.) Dr. Wiesendanger noted that plaintiff's "serologies are negative" for a variety of antibodies associated with autoimmune disease, including ANA and RF (rheumatoid factor), but she had "a low positive CRP (C-reactive Protein) and morning stiffness is significant." (Id.) On examination, Wiesendanger noted "back pain, muscle pain, muscular weakness, fatigue, joint pain and joint swelling." (R. 784.). Plaintiff's gait was "slow" and she was "using a rolling walker for stability, though [she was] able to transfer from chair to exam table unassisted." (R. 786.) Plaintiff had "[n]ormal strength except for grip and hip flexors 4/5," but "severely limited hip rotation" and limited range of motion (ROM) in the wrists, shoulders, and knees. (Id.) Dr. Wiesendanger assessed plaintiff with "severe, disabling musculoskeletal pain," with "some inflammatory features," which "suggest an underlying spondyloarthritis." (R. 788.) Since plaintiff "has not had a satisfactory response to therapy aimed at fibromyalgia," Dr. Wiesendanger recommended "restaging the arthritis with X-rays and completing the serologic evaluation." (Id.)
On November 18, 2020, Dr. Wiesendanger again noted plaintiff's slow gait, use of the walker for stability, "severe, disabling musculoskeletal pain," and reduced range of joint motion. (R. 792, 794.) However, her recent "serologies and plain radiographs" did not show "any evidence of an inflammatory arthritis." (R. 794.)
On November 23, 2020, plaintiff was again referred to neurology regarding the "numbness/tingling in her hands/feet." (R. 1259.) On examination, neurologist David Aharonoff, M.D., noted that she was "in no acute distress but complaining of a lot of pain throughout her body that appears to worsen with any small movement." (Id.) Her strength was "5/5 throughout but very limited by pain." (Id.) She had decreased sensation in "both feet in a stocking pattern." (Id.) Her gait was "[v]ery slow but no balance or strength issue[.]" (Id.) Dr. Aharonoff assessed that her peripheral neuropathy (the numbness and tingling in her hands and feet) was "likely" due to her diabetes but also "possibl[y] multifactorial w/ fibromyalgia (i.e[.] pain) being the main driver w/ some minor component of sensory loss in [bilateral] feet." (Id.) The attending neurologist, Sophia Ryan, M.D., concurred that plaintiff had both "poorly controlled diabetes" and fibromyalgia, and that both contributed to her difficulties with ambulation, with "peripheral neuropathy and pain limiting her gait and stability." (R. 1260.)
On March 9, 2021, plaintiff returned to Dr. Wiesendanger, reporting that she "had another mechanical fall yesterday." (R. 796.) Dr. Wiesendanger noted that plaintiff continued to experience "severe pain in the shoulder and lower back, radiating to the knees" (id.), and assessed "inflammatory back pain" and "neuropathy of both feet" as well as fibromyalgia. (R. 801.)
3. Community Health Physical Therapy
Plaintiff received physical therapy at Community Health Physical Therapy from August 2016 (R. 464) through at least June 2019. (R. 534-42, 642-62.) On March 9, 2018, she reported that her pain was "constant," and was exacerbated by household chores, standing, walking, and standing up from sitting. (R. 535.) On June 14, 2019, she reported that she could "look after myself normally but it is very painful," could lift only light weights, and could not walk more than a quarter of a mile, sit for more than 30 minutes, stand for more than 10 minutes, or sleep for more than six hours. (R. 643.)
4. Metropolitan Hospital
Throughout the relevant period, plaintiff's treating providers at Ryan Health and Mount Sinai frequently noted her depression and recommended specialized mental health treatment. For example, Nurse Salling referred plaintiff to Behavioral Health Integration (BHI) on multiple occasions in late 2018 and early 2019 (R. 470, 552), suggesting that the "patient would benefit [from a] consistent mental health provider" (R. 552), but it does not appear that plaintiff followed up. (R. 676.) Beginning in August 2019, however, plaintiff came under the care of Guillermo Santiago, M.D., a psychiatrist, at Metropolitan Hospital.
The first Metropolitan Hospital treating note in the record, dated October 1, 2019, reports that plaintiff was seen on August 20, 2019, "diagnosed with persistent depressive disorder," and prescribed Cymbalta and Hydroxyzine (an antihistamine also used to control anxiety). (R. 1327.)Dr. Santiago noted that plaintiff was "sad" and reported sleeping three hours per night and staying "in bed most days," which "she attributes to fatigue, chronic pain, and lack of motivation." (Id.) Additionally, plaintiff reported "whole body pain." (Id.) Dr. Guillermo prescribed Ambien (a sedative), Gabapentin, Prozac (an antidepressant), and Cymbalta. (R. 1328.) On November 1, 2019, Dr. Santiago again recorded that plaintiff felt sad, slept for only three hours per night, and stayed in bed most days due to fatigue, chronic pain, and lack of motivation. (R. 1329.) He prescribed Mirtazapine, an antidepressant sold under the brand name Remeron. (R. 1330.)
The administrative record does not appear to include the notes from plaintiff's August 20, 2019 visit.
On February 28, 2020, Dr. Santiago noted that plaintiff "was extremely concerned about getting home care" and "stated that she is being treated for chronic pain." (R. 1330-31.) Dr. Santiago continued plaintiff's course of pharmacological treatment, but she refused a referral for talk therapy. (R. 1331.) On May 28, 2020, Dr. Santiago noted that plaintiff was" doing well" but that she "stays at home most of the time" due to "the pandemic." (R. 1332.) On October 23, 2020, he noted that "she has been doing well she has no side effects from the medication and the response continue[s] to be great....No psychotic symptoms were elicited, is sleeping well, no exacerbation of anxiety, or mood." (R. 1333.) Dr. Santiago recorded identical treatment notes on February 4 and April 27, 2021. (R. 1335, 1420.)
B. Medical Imaging
X-rays of plaintiff's cervical and lumbar spine on October 14, 2015, showed a "[s]traightening of the cervical spine likely indicating muscle spasm" and "[m]ild left C4/5 neural foraminal narrowing," but did not identify any fracture, disc narrowing, or "definite neural foraminal narrowing" in the cervical spine. (R. 529.) "The alignment of the lumbar spine [was] within normal limits." (R. 530.) An MRI of her cervical spine on December 8, 2015, revealed "anatomic alignment of the cervical vertebral bodies," with no compression fracture, disc herniation, or stenosis," except for "mild annular bulge[s]" at ¶ 3-C4 and C6-C7, and a "small central disc protrusion" at ¶ 5-C6, without cord compression. (R. 531-32.)
On May 17, 2017, bilateral x-rays of plaintiff's shoulders were "[u]nremarkable," with normal bone density, "no fracture or dislocation," and "unremarkable" soft tissue structures. (R. 608.) X-rays of her feet, taken on November 7, 2019, detected no fractures, dislocation, or soft tissue swelling. (R. 1116.) X-rays of plaintiff's sacroiliac joints and cervical spine on October 8, 2020, revealed no acute fracture, misalignment, or compression deformity. (R. 1213-14.) There was "[m]ild discogenic degenerative change" at ¶ 5-C6. (R. 1214.)
C. Opinion Evidence
On June 20, 2017, Haruyo Fujiwaki, Ph.D., conducted a consultative psychiatric evaluation of plaintiff in connection with her SSI claim. (R. 445.) Dr. Fujiwaki found plaintiff's thought process to be "[c]oherent and goal directed," and her attention, concentration, and memory skills intact. (R. 446.) He found her mood "mildly dysthymic," and diagnosed her with unspecified depressive and anxiety disorder. (R. 446-47.) He concluded that although "[t]he results of the examination appear to be consistent with psychiatric problems, . . . in itself this does not appear to be significant enough to interfere with the claimant's ability to function on a daily basis." (R. 447.)
On June 27, 2017, state agency reviewer E. Amata, acting as a single decision-maker, reviewed plaintiff's medical records to date. (R. 76-78.) Amata opined that plaintiff could lift 20 pounds occasionally; could lift 10 pounds frequently; and could stand, walk, or sit, with normal breaks, for a total "more than 6 hours on a sustained basis in an 8-hour workday." (R. 76-77.) As for postural and environmental limitations, Amata opined that plaintiff could climb ramps, stairs, ladders, ropes, and scaffolds occasionally; could balance, stoop, kneel, crouch, and crawl occasionally; would need to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; but was not otherwise limited. (R. 77-78.)
On June 29, 2017, state agency psychiatric reviewer K. Lieber-Diaz, Psy.D., reviewed plaintiff's mental health records to date, including Dr. Fujiwaki's report. (R. 75.) Dr. Lieber-Diaz evaluated plaintiff's mental impairments using the psychiatric review technique (PRT) mandated by 20 C.F.R. § 416.920a.Dr. Lieber-Diaz opined that plaintiff had no limitations in understanding, remembering, and applying information; mild limitations in interacting with others; mild limitations in concentration, persistence, and maintaining pace; and mild limitations in adapting and managing himself. (R. 74-75.) Dr. Lieber-Diaz then opined that plaintiff's mental impairments were "non-severe." (R. 75.)
The PRT requires the Commissioner to "rate the degree of [the claimant's] functional limitation based on the extent to which [her] impairment(s) interferes with [her] ability to function independently, appropriately, effectively, and on a sustained basis." 20 C.F.R. § 416.920a(c)(2). The degree of functional limitation is rated in "four broad functional areas," including the claimant's ability to: (i) "[u]nderstand, remember, or apply information"; (ii) "interact with others"; (iii) "concentrate, persist, or maintain pace"; and (iv) "adapt or manage [her]self." Id. § 416.920a(c)(3). The degree of limitation in each area is rated on a five-point scale: "None, mild, moderate, marked, and extreme." Id. § 416.920a(c)(4).
On August 17, 2017, Dr. Patel of Ryan Health signed a note stating, "Ms. Nieves has chronic arthritic complaints which prevent her from being able to stand in line for extended periods of time. Please allow her to bypass the line as appropriate." (R. 624.)
On February 1, 2019, Nurse Salling of Ryan Health completed a medical report concerning plaintiff on a form provided by plaintiff's counsel. (R. 526-27.) After noting plaintiff's diagnoses - diabetes, kidney disease (stage 3), depression, fibromyalgia, asthma, hypertension, and anemia - she reported that plaintiff suffered from fatigue, generalized body aches, episodes of nausea, and lightheadedness, and opined that plaintiff could stand or walk for a total of less than two hours per day, sit without interruption for up to eight hours per day, and occasionally lift and carry less than five pounds. (R. 526-27.) Nurse Salling added that plaintiff's fatigue required her to lie down during the day, and that her condition would "substantially interfere with her productive work" more than 20% of the time. (R. 528.) Nurse Salling explained, "Pt. reports severe pain when walking and standing. She moves slowly when changing positions." (Id.)
On March 13, 2019, Dr. Kazaryan, the Mount Sinai rheumatologist, wrote a short letter to "whomever this may concern," stating: "I am treating Migdalia Nieves Morales for fibromyalgia, her pain has been debilitating to do activities of daily living. She is on multiple medications with mild control." (R. 543.)
On November 5, 2020, Ram Ravi, M.D., conducted a consultative internal medicine examination of plaintiff in connection with her SSI claim. (R. 638.) As relevant here, plaintiff rated her pain in all joints "10/10, sharp and constant, worse with lifting." (Id.) She reported that "[c]ooking, cleaning, laundry, shopping, showering/bathing, and dressing are limited due to pain." (R. 639) On examination, Dr. Ravi reported:
Squat is 30 degrees with a walker. Stance with a walker is normal. A walker is used for pain, weightbearing, and balance always. It was prescribed by a doctor. It is medically necessary. With the walker, the gait is normal. Without the device, the gait is moderately antalgic. Needed no help getting on and off the exam table. Difficulty rising from the chair due to pain.(Id.) Dr. Ravi further noted that while plaintiff's cervical spine showed full range of motion, she had limited ROM in the lumbar spine, both shoulders, both hips, and both knees. (R. 640.) No sensory deficits were noted, and her strength was "5/5" in both the upper and the lower extremities. (R. 641.) Dr. Ravi assessed "no limitations to sitting" but "[m]oderate limitations to standing, walking, bending, overhead reaching, pushing, pulling, lifting, and carrying." (Id.) Additionally, due to plaintiff's history of asthma, she was to avoid smoke, dust, and other respiratory irritants. (Id.)
III. HEARING
Plaintiff appeared at her 2021 video hearing before ALJ Romeo with counsel, and testified partly through a Spanish interpreter. (R. 42, 43.) She told the ALJ that she was prescribed a wheelchair, but "never got to use the wheelchair." (R. 50.) Instead, plaintiff received a rolling walker in the summer of 2019. (R. 50-51.) Plaintiff stated that she used the walker "[a]lmost all the time," both indoors and outdoors, because she found it difficult to walk "from the pain in my legs." (R. 51.) Plaintiff also felt pain "in my lower back, my hips," as well as "my shoulders, my neck, my arms, my fingers." (Id.) Additionally, she testified that her "shins and the back of [her] feet are always hot" (id.), and that her "fingers tingle and they get numb." (R. 52.)
Plaintiff testified that she had received both medications and physical therapy. (R. 51.) Although the medications only helped "a little bit," the physical therapy, which she attended from 2015 to 2020, "helped me a lot," if only "at the moment." (R. 51-52.)
Plaintiff also testified that beginning in April 2020 she had help from a home health aide who was with her five days per week, for three and a half hours each day. (R. 54-55.) The aide "cooks, he cleans, he washes the dishes, he washes the bath [t]ub, he takes me to sup [sic] and does the laundry and mops the halls." (R. 56.) Before she had the assistance of a home health aide, her children helped her with these tasks. (Id.)
The ALJ then took testimony from VE Olds. (R. 58.) The ALJ explained that she and plaintiff's counsel had determined that the claimant had no prior relevant work (R. 60), and then posed a hypothetical, asking the VE to assume a person of plaintiff's age, education, and work experience, with the residual functional capacity (RFC) to engage in sedentary work,except that the hypothetical claimant could stoop and climb stairs only "occasionally"; "should not squat, crawl, crouch"; "can never climb a ladder or work at any heights"; should work indoors "and be exposed to only normal indoor air conditions and temperatures and should not be exposed to any extremes of heat or cold or fumes or other respiratory irritants"; is limited to "work that requires little or no judgment to do simple duties that a person can do on the job in a short period of time, usually 30 days or less"; and is "further limited to low stress work defined as only occasional decision making and only occasional changes in work setting and can have only occasional interaction with the public and coworkers." (R. 61.)
Sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 416.967(a).
The ALJ asked the VE if there would be "any work in the national economy for such a person." (R. 61.) VE Olds responded that such a person could perform work as a "small parts assembler," DOT 706.684-022. (R. 61.)Although the DOT classifies that occupation as light work (R. 62),the VE opined that "about half of the total number of those jobs," approximately 30,000 nationwide, could be "done at sedentary." (R. 63-64.) The VE's opinion was based on his "experience with those types of jobs." (R. 64.) The VE did not elaborate further as to why he believed that there were 30,000 "sedentary" small parts assembler jobs in the United States.
The Dictionary of Occupational Titles (DOT) is an "authoritative Department of Labor publication," Lockwood v. Comm'r of Soc. Sec. Admin., 914 F.3d 87, 88 (2d Cir. 2019), which -although it has not been updated since 1991 - is still used by the SSA in determining what work a disability claimant can do.
Light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities[.]" 20 C.F.R. § 416.967(b).
When the ALJ asked the VE whether there were "any strictly sedentary jobs that could be done with that RFC" (R. 64), he replied, "Not with the limitations on public contact I think." (Id.) The VE explained that there are "not many sedentary unskilled jobs to begin with," and "then we add in all those limitations with - especially with limited interaction with coworkers and the public.
It really eliminates the sedentary, unskilled sedentary work that I can identify." (Id.)
Finally, the ALJ then asked about a hypothetical claimant with all of the limitations previously described who also "needed a rolling walker to ambulate." (R. 64.) VE Olds opined that this would "eliminate all the sedentary jobs as well." (Id.)
IV. THE ALJ'S DECISION
On November 24, 2021, the ALJ issued her Decision, concluding that plaintiff was not disabled.
At step one of the five-step analysis mandated by 20 C.F.R. § 416.920(a)(4)(i), the ALJ found that plaintiff had not engaged in substantial gainful activity since April 18, 2017. (R. 111.)
At step two, see 20 C.F.R. § 416.920(a)(4)(ii), she found that plaintiff's mild cervical disc protrusion and mild spondylosis, hypertension, asthma, diabetes mellitus, gastritis, obesity, and mood disorder/depression/anxiety were all "severe" impairments, but only "from October 19, 2016 to the present." (R. 111.) The ALJ found that "from the alleged onset date, August 2, 2015, to October 18, 2016, the claimant did not have any severe impairments," because the only medical evidence in the record from that period was the December 2015 cervical spine X-ray, which "only showed minimal to mild findings." (R. 112.) The ALJ further found that plaintiff's anemia and chronic kidney disease were not "severe," and that her fibromyalgia was not even "a medically determinable impairment," because there were "no findings of trigger points in the examinations performed by multiple doctors," as required (according to the ALJ) by SSR 12-2p. (R. 112.) The ALJ added that "[w]hile there is evidence of widespread pain, various doctors believed that it could be caused by poorly controlled diabetes or untreated mental health issues." (Id.)
At step three, see 20 C.F.R. § 416.920(a)(4)(iii), the ALJ found that none of plaintiff's severe impairments, individually or in combination, met or equaled the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 112-113.)
As to plaintiff's mental impairments, the ALJ found that plaintiff had "moderate" limitations in each of the four functional areas set out in 20 C.F.R. § 416.920a(c)(3). (R. 113-14.) In order to meet the so-called "paragraph B criteria" of listings 12.04 (depressive, bipolar, and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders), the claimant must show an "[e]xtreme limitation of one, or marked limitation of two" of those four areas. See 20 C.F.R. Pt. 404, Subpt. P, App'x 1, §§ 12.00(F)(2), 12.04(B), 12.06(B).
Before proceeding to step four, the ALJ found that plaintiff had the RFC to perform sedentary work, as defined in 20 C.F.R. § 416.967(a),
except she can occasionally stoop and climb stairs. She can never squat, crawl, crouch, climb ladders, or work at any heights. She can work indoors and be exposed to normal indoor air conditions and temperatures, but she should not be exposed to extremes of heat, cold, fumes, and other respiratory irritants. She can perform work that requires little or no judgment to do simple duties that a person can learn on the job in a short period of time (i.e., 30 days or less), usually at an SVP of one or two as rated in the SCO. She is limited to low stress work, defined as only occasional decision making and only occasional changes in the work setting. She can have occasional interaction with the public and coworkers.(R. 114.)
In formulating plaintiff's RFC, the ALJ found that plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, [her] statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record[.]" (R. 122.) In particular, the ALJ found that plaintiff's testimony regarding her disabling pain was undercut by her statements to Dr. Santiago, her psycho-pharmacologist, that her response to medication had been "great," and treating notes from Ryan Health stating that her medications "provided her with moderate relief from the symptoms of chronic pain," such that "she was able to do all of her usual activities." (Id.)The ALJ also noted that plaintiff took trips to Puerto Rico and that in June 2017, when she was examined by Dr. Fujiwaki, she stated that she was capable of cooking, cleaning, laundry, food shopping, managing money, driving, and personal grooming. (Id.) Additionally, the ALJ pointed out that "much of the examination results in the record are unremarkable, with the claimant having full strength and normal gait." (Id.) The ALJ concluded that plaintiff's "ability to travel, report of activities of daily living, and rather unremarkable objective test results support a finding that [she] was capable of an eroded level of sedentary work." (Id.)
Dr. Santiago did write, several times, that plaintiff reported no medication side effects and that her response to the medication was "great." (See R. 1333, 1335, 1420.) But it is fairly clear, in context, that these notes concerned the psychotropic medications he prescribed for her mood disorder - not the medications that other providers prescribed for her physical impairments. As for the Ryan Health notes, there is only one - dated November 6, 2020 - reporting that plaintiff obtained "moderate relief of symptoms" from Duloxetine (Cymbalta). (R. 687.) More typically, plaintiff's providers noted that she obtained only "mild" relief from her medications. (See, e.g., R. 543, 596, 778, 976, 1257.) It is true that a number of Ryan Health treating notes in 2020 stated that plaintiff was "able to do [her] usual activities, no fatigue." (R. 693, 696, 701.) By 2020, however, plaintiff's usual activities were significantly limited - and no longer included housework, which was done by her home health aide. (R. 54-55.) Moreover, at each of the Ryan Health visits identified by the ALJ, plaintiff also reported "persistent fibromyalgia pain" and "body aches," which she rated at 8 to 10 on a scale of 10. (R. 691, 693, 694, 697, 700, 701.)
Turning to the opinion evidence, the ALJ found Dr. Ravi's opinion "persuasive" insofar as he concluded that plaintiff "had moderate limitation to standing, walking, bending, overhead reaching, pushing, pulling, lifting, and carrying, and she should avoid respiratory irritants" (R. 120), but "unpersuasive" to the extent he found plaintiffs walker medically necessary, because -in the ALJ's view - there was "no evidence in the record or from his own personal examination, that there was reduced leg strength or other findings supporting the medical necessity of the walker." (R. 121.)
The ALJ found Nurse Salling's opinion as to plaintiff's exertional capacity "not persuasive," because it was not supported by her treatment notes, which indicated that on January 23, 2019, plaintiff "appeared well and pleasant," and which contained" no other objective findings to support such restrictive limitations." (R. 121.) Nor, in the ALJ's view, was Nurse Salling's opinion consistent with the overall evidence, as plaintiff "was consistently found to have full strength except for 4/5 strength grip and hip flexors in late 2020," and "[a]s late as 2021, the claimant was able to transfer from chair to exam table without assistance and had no joint effusion." (Id.) The ALJ added that her decision to prescribe an electric wheelchair, "even though she did not agree that the claimant should have one," "call[ed] into question the objectiveness of Ms. Salling's opinion overall." (Id.)
The ALJ found "somewhat persuasive" Dr. Patel's opinion that plaintiff "was unable to stand in line for extended periods of time." (R. 121.) Although the opinion was "vaguely stated," and was suspiciously "issued just prior to the claimant's trip to Puerto Rico," it was "generally consistent with the overall evidence, including the claimant's complaints of widespread pain, and would support a sedentary exertion level." (Id.)
The ALJ found Dr. Fujiwaki's consultative opinion "persuasive," but did not adopt it, because "subsequent evidence, including the claimant's testimony about often staying home and her complaints of widespread pain, support moderate limitations in each functional area." (R. 121.) The ALJ rejected the opinion of the state agency reviewer who found plaintiff's mental impairments "non severe," because "[t]he evaluator did not examine the claimant and the opinion is not consistent with the overall evidence[.]" (R. 122.)
At step four, see 20 C.F.R. § 416.920(a)(4)(iv), the ALJ found that plaintiff had no past relevant work (R. 122), but at step five, see 20 C.F.R. § 416.920(a)(4)(v), relying on the testimony of VE Olds, the ALJ found that plaintiff could work as a small parts assembler. (R. 122-23.) The ALJ noted that, according to the VE's "professional experience," there are "30,000 of these jobs at the sedentary level nationally[.]" (R. 123.) The ALJ therefore found that plaintiff was not under a disability at any time after April 18, 2017, the date she filed her application. (R. 123.)
V. OVERVIEW OF ISSUES
In support of her motion for judgment on the pleadings (Dkt. 13), plaintiff argues: (1) that the ALJ failed to consider plaintiff's reliance on a walker when formulating her RFC, see Pl. Mem. (Dkt. 14) at ECF pp. 17-19; (2) that the ALJ improperly relied, at step five, on VE testimony that was inconsistent with the DOT, see id. at ECF pp. 19-23; (3) that the ALJ erred at step two in "not recognizing [plaintiff's] fibromyalgia as a severe impairment," see id. at ECF pp. 23-26; and (4) that the RFC formulated by the ALJ was not supported by substantial evidence because she improperly assessed the medical opinion evidence (particularly Dr. Ravi's opinion that plaintiff's walker was medically necessary and Nurse Salling's opinion as to plaintiff's exertional capacity) and improperly discounted plaintiff's subjective complaints. See id. at ECF pp. 26-30.Plaintiff urges the Court to remand for a calculation of benefits or, in the alternative, for further administrative proceedings. Id. at ECF p. 29.
Under the Supplemental Rules for Social Security (Supp. R.), effective December 1, 2022, a plaintiff seeking judicial review of an adverse disability determination need not make a separate motion. Instead, in recognition of the essentially appellate character of an action filed pursuant to 42 U.S.C. § 405(g), the case is "presented for decision by the parties' briefs." Supp. R. 5.
Plaintiff's opening brief is overlength, unpaginated, inconsistently organized (the argument contains subparts labeled (1), (2), (2), and (4)), and lacks both a table of contents and a table of authorities, in violation of Standing Order M 10-468 (Dkt. 6) at 2 (principal briefs limited to 25 pages) and Moses Ind. Prac. § 2(h) (principal briefs limited to 25 pages; briefs longer than 10 pages must include tables). Her reply brief (Pl. Reply Mem.) (Dkt. 17) is properly paginated, and includes tables, but is overlength. In the future, any similarly noncompliant memoranda may be rejected.
In response, the Commissioner argues: (a) that plaintiff failed to meet her burden of showing that her fibromyalgia was medically determinable, see Def. Mem. at 9-10; (b) that the ALJ's RFC finding was based on substantial evidence, see id. at 10-13; (c) that plaintiff failed to show that her rolling walker was medically necessary, see id. at 13-14; and (d) that the ALJ properly evaluated all of the medical opinion evidence, see id. at 14-18, and properly relied on VE Olds to find that plaintiff could perform work existing in significant numbers in the national economy. See id. at 18-22. Any remand, according to the Commissioner, should be for further administrative proceedings, because this is not "the rare case where the 'record provides persuasive
Consequently, rather than make a cross-motion to affirm the decision of the ALJ - as in past practice - the Commissioner simply filed a brief urging the Court to "affirm" the final agency determination. Def. Mem. (Dkt. 15) at 1. proof of disability and remand for further proceedings would serve no purpose.'" Id. at 22 (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)).
In her reply memorandum, plaintiff argues that if there were any doubt about plaintiff's fibromyalgia diagnosis, the ALJ should have re-contacted plaintiff's treating sources for more information rather than refuse to recognize the impairment, and that the error was not harmless. Pl. Reply Mem. at 5-9. She further argues that the ALJ "failed to meaningfully address" whether plaintiff's walker was medically necessary, id. at 11, and that the testimony of VE Olds failed to "resolve" the conflict between his opinion and the DOT concerning the exertional classification of the small parts assembler job. Id. at 12-14.
I agree with plaintiff in substantial part. As discussed in more detail below, the ALJ erred when she (i) rejected plaintiff's primary and long-standing diagnosis of fibromyalgia as not medically determinable; (ii) rejected Dr. Ravi's opinion that plaintiff's walker was medically necessary; and (iii) accepted the VE's unsupported opinion, at odds with the DOT, that half of the small parts assembler jobs available nationwide could be performed at the sedentary level. Any one of these errors, standing alone, would require remand. Consequently, I do not reach the remaining arguments raised by plaintiff.
VI. ANALYSIS
In considering the parties' positions, I have reviewed the entire administrative record (totaling 1422 pages) and applied the familiar and frequently reiterated standards used by federal district courts to review disability decisions. Generally speaking, a court may set aside an ALJ's decision only if it is based upon legal error or if the ALJ's factual findings are not supported by substantial evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-12 (S.D.N.Y. Mar. 12, 2019).
"The court reviews the ALJ's application of legal standards de novo." Sawicki v. Comm'r of Soc. Sec., 2023 WL 5164212, at *6 (S.D.N.Y. Aug. 11, 2023) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). A finding of legal error will result in remand, unless "application of the correct legal principles to the record could lead only to the same conclusion," rendering the error harmless. Garcia v. Berryhill, 2018 WL 5961423, at *11 (S.D.N.Y. Nov. 14, 2018) (quoting Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010)).
In applying the substantial evidence standard, however, the district court does not "determine de novo whether [the Plaintiff] is disabled." Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (internal quotation marks and citation omitted). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Although the reviewing court "must consider the whole record, examining the evidence from both sides," Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009), its task is "limited to determining whether substantial evidence exists to support the ALJ's fact-finding[.]" Dubois v. Comm'r of Soc. Sec., 2022 WL 845751, at *4 (S.D.N.Y. Mar. 21, 2022). The court "may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation." Id. "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks and citation omitted). Thus, the substantial evidence standard is "a very deferential standard of review." Id.
A. The ALJ Erred at Step Two
At step two of the sequential evaluation process, the ALJ must determine whether the claimant has a "severe medically determinable physical or mental impairment[.]" 20 C.F.R. § 416.920(a)(4)(ii). A "severe" impairment "significantly limits [the claimant's] physical or mental ability to do basic work activities," 20 C.F.R. § 416.920(c), such as "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." 20 C.F.R. § 416.922(b)(1). The step two standard is low, because it is "intended only to screen out the very weakest cases." McIntyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014); see also Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (the "severity regulation" is "applied to screen out de minimis claims").
The Second Circuit has recognized that "fibromyalgia is a disabling impairment and that 'there are no objective tests which can conclusively confirm the disease.'" Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (quoting Preston v. Sec. of Health and Human Servs., 854 F.2d 815, 818 (6th Cir. 1988) (per curiam)). Indeed, one of the distinguishing features of the condition is that, "[i]n stark contrast to the unremitting pain of which fibrositis patients complain, physical examinations will usually yield normal results - a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions." Lisa v. Sec'y of Dep't of Health and Human Servs. of U.S., 940 F.2d 40, 45 (2d Cir. 1991) (quoting Preston, 854 F.2d at 817-18). "[T]he main symptoms of fibromyalgia 'are "pain all over," fatigue, disturbed sleep, stiffness," and, in many cases, "multiple tender spots, more precisely 18 fixed locations on the body," that "when pressed firmly cause the patient to flinch." Cabibi v. Colvin, 50 F.Supp.3d 213, 233 (E.D.N.Y. 2014).
Social Security Ruling 12-2p, "Evaluation of Fibromyalgia," sets forth the criteria for establishing fibromyalgia (abbreviated therein as "FM") as a medically determinable impairment in disability proceedings: (1) a physician has diagnosed FM; (2) the physician has provided evidence described either by the 1990 American College of Rheumatology Criteria (1990 ACR Criteria) or the 2010 American College of Rheumatology Preliminary Diagnostic Criteria (2010 ACR Criteria); and (3) the physician's diagnosis is not inconsistent with other evidence in the record. SSR 12-2p, 2012 WL 3104869, at *2-3 (SSA July 25, 2012).
Under the 1990 ACR Criteria, a claimant must establish (1) "A history of widespread pain, that is, pain in all quadrants of the body," and "axial skeletal pain" that has persisted for at least three months (although it may not always be present); (2) at least eleven positive tender points found bilaterally and above and below the waist; and (3) evidence that other disorders that could cause the symptoms or signs were excluded. SSR 12-2p, 2012 WL 3104869, at *2-3.
Under the 2010 ACR Criteria, a claimant must establish (1) a history of widespread pain; (2) "[r]epeated manifestations of six or more FM symptoms, signs, or co-occurring conditions, especially manifestations of fatigue, cognitive or memory problems ('fibro fog'), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome"; and (3) evidence that other disorders that could cause these symptoms were excluded. SSR 12-2p, 2012 WL 3104869, at *3.
The "[s]ymptoms and signs that may be considered" under the 2010 ACR Criteria also include muscle pain, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, constipation, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud's phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms. SSR 12-2p, 2012 WL 3104869, at *3 n.9. "[C]o-occurring conditions that may be considered" also include temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome. Id. at *3 n.10.
If the claimant has met the other requirements of SSR 12-2p, satisfaction of either the 1990 ACR Criteria or the 2010 ACR Criteria establishes that her fibromyalgia is medically determinable. Selian v. Astrue, 708 F.3d 409, 420 n.3 (2d Cir. 2013). "Therefore, before deciding that a claimant does not have fibromyalgia, an ALJ must analyze both the 1990 and the 2010 criteria." Joseph Y. v. Comm'r of Soc. Sec., 2022 WL 125821, at *2 (W.D.N.Y. Jan. 13, 2022); see also Rodriguez v. Comm'r of Soc. Sec., 2021 WL 4462000, at *14 (S.D.N.Y. June 16, 2021) (remanding where ALJ found that plaintiff's fibromyalgia was not medically determinable without considering whether her symptoms satisfied the 2010 ACR Criteria), report and recommendation adopted, 2021 WL 4461272 (S.D.N.Y. Sept. 29, 2021); Kirah D. v. Berryhill, 2019 WL 587459, at *6-7 (N.D.N.Y. Feb. 13, 2019) (remanding because "it does not appear that the ALJ considered plaintiff's fibromyalgia under both sections of SSR 12-2p"); Cooper v. Comm'r of Soc. Sec., 2019 WL 1109573, at *4-5 (W.D.N.Y. Mar. 11, 2019) (remanding where it was "not clear" whether the ALJ considered the "alternative diagnostic criteria" for fibromyalgia). In assessing a person with fibromyalgia, the agency will "consider a "longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have 'bad days and good days.'" SSR 122p, 2012 WL 3104869, at *6.
Here, plaintiffs fibromyalgia - which was diagnosed by multiple physicians and is noted on virtually every page of her medical records - was found to be a "severe impairment" by ALJ Smith in 2019. (R. 87.) In 2021, however, ALJ Romeo found that plaintiff's fibromyalgia was not "medically determinable." (R. 112.) Consequently, she did not consider whether it was "severe" or take it into account when formulating plaintiff's RFC. ALJ Romeo reasoned that there were "no findings of trigger points in the examinations performed by multiple doctors," and that, while there was "evidence of widespread pain, various doctors believed that it could be caused by poorly controlled diabetes or untreated mental health issues." (Id.)
The ALJ committed legal error by failing to consider whether plaintiff met the 2010 ACR Criteria, which do not require that any specific positive trigger points be identified. See SSR 12-2p, 2012 WL 3104869, at *3. The 2010 ACR Criteria require a "history of widespread pain," id., which was amply documented here; repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions; and evidence that other disorders were excluded. SSR 12-2p, 2012 WL 3104869, at *3. As plaintiff correctly points out, see Pl. Mem. at ECF p. 25, the record before the ALJ was replete with evidence of symptoms, signs, and co-occurring conditions that may be considered under the 2010 ACR Criteria, see SSR 12-2p, 2012 WL 3104869, at *3 nn.9-10, including fatigue (see, e.g., R. 526, 528, 713, 772, 786, 981, 1204-05, 1327); memory problems (see, e.g., R. 446, 784, 1094-95); poor sleep (see, e.g., R. 445, 546, 555, 679, 768, 772, 774, 780, 784, 981, 983, 992, 1091, 1120); depression (see, e.g., R. 445, 558, 674, 763, 784, 994, 1327-1337, 1420), anxiety (see, e.g., R. 446, 688, 684, 784, 1091), gastroesophageal reflux disorder (see, e.g., R. 684, 694); numbness and tingling (see, e.g., R. 688, 694, 711, 784, 790); and dizziness. (See, e.g., R. 469, 598, 711, 784.) Additionally, the record shows that plaintiff's providers were alert to the possibility that other disorders (such as autoimmune conditions, demyelinating disease, smallfiber neuropathy, spondyloarthritis, and cervical spine conditions) could cause her symptoms, and methodically ruled them out. (See, e.g., R. 452-53, 592, 770, 794, 807, 783, 1260.)
Although none of plaintiff's providers counted her trigger points, the record contains multiple findings of tenderness to palpation (TTP) or diffuse tenderness. (R. 452-53, 460-61, 555, 559, 581, 772.)
I note as well that there is "no indication . . . that any of the Plaintiff's treating sources disagreed or questioned the diagnosis of fibromyalgia." Villar v. Comm'r of Soc. Sec., 2020 WL 1131225, at *3-4 (W.D.N.Y. Mar. 9, 2020) (remanding where plaintiff's providers diagnosed her with fibromyalgia but it was unclear whether the ALJ "considered Plaintiff's fibromyalgia in determining her RFC"). The ALJ's statement that some of plaintiff's providers believed that her widespread pain "could be caused by poorly controlled diabetes or untreated mental health issues" (R. 112) appears to rest on a misinterpretation of the treating notes she cites. On November 23, 2020, two Mount Sinai neurologists - Dr. Aharonoff and Dr. Ryan - agreed that while plaintiff's diabetes likely contributed to her "probable peripheral neuropathy" (the numbness and tingling in her hands and feet), the etiology of her condition was "multifactorial," with fibromyalgia "being the main driver w/ some minor component of sensory loss in [bilateral] feet." (R. 1259.) Dr. Ryan added that plaintiff had both "poorly controlled diabetes . . . and fibromyalgia." (R. 1260 (emphasis added).) Nothing in these treating notes suggests that Dr. Aharonoff or Dr. Ryan disagreed with the fibromyalgia diagnosis or believed that plaintiff's diabetes was responsible for her long history (predating her diabetes diagnosis) of widespread body pain. Similarly, nothing in Dr. Kazaryan's December 11, 2018 note suggests that plaintiff's pain was psychosomatic. Rather, Dr. Kazaryan diagnosed plaintiff with "Fibromyalgia, uncontrolled," likely "induced" by childhood trauma and exacerbated by her "underlying depression, which contributes to her uncontrolled body pain." (R. 994 (emphasis added).) Dr. Kazaryan did not suggest that plaintiff's depression symptoms were in any way inconsistent with her fibromyalgia diagnosis.
To the contrary: the 2010 ACR Criteria identify depression as a "somatic symptom" that may be considered as supporting a diagnosis of fibromyalgia. See SSR 12-2p, 2012 WL 3104869, at *3 n.9.
The Commissioner argues that the ALJ's failure to consider the 2010 ACR Criteria was harmless because "she did not provide evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded," as required by both sets of criteria, Def. Mem. at 10, and because, notwithstanding her step two determination, the ALJ "considered the effect of Plaintiff's fatigue, pain, and other alleged symptoms related to fibromyalgia in [her] RFC analysis." Id.
In fact, as discussed above, plaintiff's physicians considered and excluded numerous alternative diagnoses, consistently concluding that fibromyalgia was the primary cause of her symptoms. Moreover, where an ALJ errs at step two by failing to recognize an impairment as medically determinable, that error undermines the ALJ's credibility analysis as well - and, ultimately, the formulation of plaintiff's RFC - because "an ALJ may credit a claimant's statements about her symptoms and functional limitations only if the impairment to which they relate is medically determinable." Cooper, 2019 WL 1109573, at *5 (citing SSR 12-2p, 2012 WL 3104869, at *5); see also Rick v. Comm'r of Soc. Sec., 2020 WL 4344844, at *5 (W.D.N.Y. July 29, 2020) ("[B]ecause the symptoms of fibromyalgia are subjective, a failure to recognize fibromyalgia as a medically determinable impairment may adversely impact an ALJ's assessment of a plaintiff's credibility.").
That is precisely what happened here. In concluding that plaintiff's statements regarding her pain were "not entirely consistent with the medical evidence," the ALJ relied in part on the fact that her examination results were largely "unremarkable," revealing "full strength" and (at times) a "normal gait." (R. 122.) In fibromyalgia patients, however, "physical examinations will usually yield normal results[.]" Lisa, 940 F.2d at 45. Thus, it is error to rely on such results to discredit a fibromyalgia patient's subjective complaints about her pain. See Green-Younger 335 F.3d at 108 (the "reasons suggested by the ALJ" to discount plaintiff's subjective reports of pain, including "the relative lack of physical abnormalities" found upon examination, "simply do not undermine her credibility" in light of her fibromyalgia diagnosis); Gang v. Barnhart, 2003 WL 22183423, at *6 (E.D.N.Y. Sept. 23, 2003) (given Gang's fibromyalgia, ALJ could not properly rely on the lack of "objective evidence" to "discredit Gang's testimony about her pain"). For this reason as well, the ALJ's error in assessing plaintiff's fibromyalgia requires remand.
B. The ALJ Erred in Evaluating Dr. Ravi's Opinion
In evaluating a disability claim filed on or after March 27, 2017, including the claim at issue here, the ALJ need not "defer" or "give any specific evidentiary weight, including controlling weight," to any medical opinion or prior administrative medical finding. 20 C.F.R. § 416.920c(a). Rather, the ALJ must evaluate the "persuasiveness" of each such opinion or finding in light of: (i) its "[s]upportability"; (ii) its "[c]onsistency"; (iii) the "[r]elationship" between the medical source and the claimant; (iv) the source's "[s]pecialization" in a relevant medical field; and (v) "other factors that tend to support or contradict" the opinion or finding. Id. § 416.920c(c)(1)-(5). Of these, the most important factors are "supportability" and "consistency." Id. § 416.920c(b)(2); Rivera v. Comm'r of the Soc. Sec. Admin., 2020 WL 8167136, at *11 (S.D.N.Y. Dec. 30, 2020), report and recommendation adopted sub nom. Rivera v. Comm'r of Soc. Sec. Admin., 2021 WL 134945 (S.D.N.Y. Jan. 14, 2021). While no "magic words" are required, the ALJ's discussion must make it clear how she considered both factors. See Loucks v. Kijakazi, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022) (summary order) (remanding for calculation of benefits where "the ALJ committed procedural error by failing to explain how it considered the supportability and consistency of medical opinions in the record").
Supportability "has to do with the fit between the medical opinion offered by the source and the underlying evidence and explanations 'presented' by that source to support her opinion." Rivera, 2020 WL 8167136, at *16. Thus, in evaluating supportability, an ALJ is compares the opinion with the "objective medical evidence and supporting explanations" presented by the opining source. 20 C.F.R. § 416.920c(c)(1). Consistency is a broader inquiry, "focused on how well a medical source is supported, or not supported, by the entire record," which may or may not contain another medical opinion as a comparator. Vellone on behalf of Vellone v. Saul, 2021 WL 319354, at *6 (S.D.N.Y. Jan. 29, 2021), report and recommendation adopted, 2021 WL 2801138 (S.D.N.Y. July 6, 2021). When weighing medical opinions, however, "[t]he ALJ is not permitted to substitute [her] own expertise or view of the medical proof for the treating physician's opinion or for any competent medical opinion." Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015).
In this case, the ALJ found Dr. Ravi's November 5, 2020 consultative opinion persuasive to the extent he "opined that the claimant had moderate limitation to standing, walking, bending, overhead reaching, pushing, pulling, lifting, and carrying, and she should avoid respiratory irritants." (R. 120.) However, she found it unpersuasive to the extent Dr. Ravi opined "that the walker was medically necessary," because - according to the ALJ - "there is no evidence in the record or from his own personal examination, that there was reduced leg strength or other findings supporting the medical necessity of the walker." (R. 121.) The ALJ did not otherwise explain her rejection of Dr. Ravi's opinion on this point.
To the extent the ALJ's reasoning was intended to function as the required supportability and consistency analysis, it is inadequate, not only because of its brevity (the ALJ failed entirely to explain how or in what ways this portion of Dr. Ravi's opinion was inconsistent with "the evidence from other medical sources and nonmedical sources," 20 C.F.R. § 416.920c(c)(2)), but because it is not supported by substantial evidence in the record. To the contrary: there is ample record evidence - including from Dr. Ravi's personal examination of the plaintiff - supporting the need for a walker. To be sure, Dr. Ravi did not find reduced strength in plaintiff's legs.However, he noted that plaintiff used her walker "for pain, weightbearing, and balance always," and he observed that "with the walker, the gait is normal," but "[w]ithout the device, the gait is moderately antalgic." (R. 639.) Plaintiff's need for the walker is also supported by Dr. Wisendanger's October 6 and November 18, 2020 treatment notes, observing that plaintiff's "[g]ait is slow," that she was using the walker "for stability" (and had been doing so since 2019), and that she had "vertigo and lightheadedness," causing her to fall twice in her bathroom in 2019. (R. 784, 792, 1205); Dr. Aharonoff's November 23, 2020 treatment note, reporting that plaintiff "[w]alks with the walker due to diffused pain" (R. 1257); and Dr. Ryan's note, that same day, observing that both "peripheral neuropathy and pain" were limiting plaintiff's "gait and stability." (R. 1260.) In focusing only on plaintiff's unimpaired leg strength, the ALJ improperly substituted her opinion for those of the medical professionals who examined plaintiff - none of whom opined that the walker was unnecessary.
As noted above, this is typical of fibromyalgia patients. See Lisa, 940 F.2d at 45.
Plaintiff's providers at Ryan Health did not believe that she needed a motorized wheelchair. (R. 525.) However, they did believe that she needed a walker, and apparently ordered it for her in the summer of 2019. (R. 632.)
Once again, the ALJ's error was not harmless. As VE Olds explained at the hearing, if plaintiff required the use of a rolling walker, that would "eliminate all the sedentary jobs" that she could otherwise perform. (R. 64.) Remand is therefore required.
C. The ALJ Erred at Step Five
At step five, the Commissioner is "responsible for providing evidence that demonstrates that [] work exists in significant numbers in the national economy" that the claimant is capable of performing. 20 C.F.R. § 416.960(c)(1)-(2). In this Circuit, "the ALJ must call a vocational expert to evaluate a claimant's significant non-exertional impairments in order to meet the step five burden." Martinez v. Saul, 2021 WL 2588783, at *7 (S.D.N.Y. June 23, 2021) (quoting Lacava v. Astrue, 2012 WL 6621731, at *18 (S.D.N.Y. Nov. 27, 2012) (citations omitted), report and recommendation adopted, 2012 WL 6621722 (S.D.N.Y. Dec. 19, 2012)).
Policy Interpretation Ruling 00-4p, "Use of Vocational Expert and Vocational Specialist Evidence, and other Reliable Occupational Information in Disability Decisions," notes that ALJs rely "primarily" on the DOT and its companion publication, the Selected Characteristics of Occupations (SCO), "for information about the requirements of work in the national economy," SSR 00-4p, 2000 WL 1898704, at *2 (SSA Dec. 4, 2000), but also "use VEs and VSs [vocational specialists] as sources of occupational evidence in certain cases." Id.
Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled.SSR 00-4p, 2000 WL 1898704, at *2. After eliciting the explanation, the ALJ must "resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information." Id.
In Lockwood, the Second Circuit relied on SSR 00-4p to remand an adverse disability determination based upon VE testimony in conflict with the DOT. Lockwood v. Comm'r of Soc. Sec., 914 F.3d 87, 91-94 (2d Cir. 2019). The claimant was capable of light work, so long as no overhead reaching was required. Id. at 89. The VE opined that he could perform three specific jobs. Id. Although the DOT classified each of those jobs as requiring "reaching," the ALJ accepted the VE's opinion and found the claimant not disabled. Id. The district court affirmed, reasoning that "the conflict was 'reconciled because [the VE's] testimony indicate[d] that she based her opinion on her own experience observing the performance of the identified jobs.'" Id. at 90. However, the Second Circuit reversed, holding that the ALJ failed to "reconcile [the VE's] testimony that a person with an overhead reaching limitation can perform the three jobs at issue here with the Dictionary's indication that all three jobs require 'reaching,'" and therefore that the VE's testimony did not constitute "substantial evidence capable of demonstrating that Lockwood can successfully perform work in the national economy." Id. at 94.
Here, as in Lockwood, there was a clear conflict between the DOT and the testimony of the VE: the DOT categorizes the job of "small parts assembler" as "light" work, which would be beyond plaintiff's exertional capacity, but VE Olds testified that 30,000 small parts assembler jobs nationwide (half of the total number of such jobs in the national economy) could be performed at the "sedentary" level. (R. 61-64.) Moreover, since the VE did not identify any other jobs that the plaintiff could perform, the ALJ necessarily relied upon this testimony in determining that plaintiff was not disabled.
However, the ALJ failed to elicit a reasonable explanation for the discrepancy between the DOT and the VE's opinion. The only question the ALJ asked the VE in this regard was, "So what would the number of [small parts assembler] jobs be available at sedentary?" (R. 64.) The VE replied, "30,000. That is about half the total number of those jobs. Then again, that is based upon experience with those types of jobs." (Id.) The ALJ made no further inquiry as to the basis of the VE's opinion as to the number of small parts assembler jobs that can be performed at the sedentary level, and the VE offered no additional details.
"These kinds of vague questions and answers are not enough[.]" Nieto v. Comm'r of Soc. Sec., 2021 WL 1784317, at *3 (E.D.N.Y. May 5, 2021) (remanding where the VE explained the conflict between his testimony and the SCO by saying that his opinion was based on his "knowledge and experience in the vocational field"); see also Alex C. v. Kijakazi, 2023 WL 2706232, at *3 (D. Conn. Mar. 30, 2023) (VE's explanation that he "relied on his professional experience" was not sufficient to resolve conflict with DOT); Matthew M. v. Comm'r of Soc. Sec., 2022 WL 3346949, at *4 (W.D.N.Y. Aug. 12, 2022) ("The fact that the VE's opinion was based on his own 'knowledge and experience' does not resolve the conflict.") (quoting Lockwood, 914 F.3d at 92); Roberto v. Saul, 2021 WL 3912298, at *6 (E.D.N.Y. Sept. 1, 2021) (remanding where VE stated generically that his conclusions were "based on [his professional] experience," but did not otherwise address the conflict between the DOT and his opinion regarding the amount of overhead reaching required by certain jobs).
"[T]he procedure that must be used to resolve the conflict is that the ALJ must first expressly recognize the conflict and then elicit a specific basis from the vocational expert that reconciles it." Nieto, 2021 WL 1784317, at *3 (emphasis added). That procedure was not followed here. Although the VE "presented" the conflict between his testimony and the DOT, he provided no substantive basis for his conflicting opinion. Cf. Reilly v. Comm'r of Soc. Sec., 2022 WL 803316, at *2 (2d Cir. Mar. 17, 2022) (summary order) (concluding that ALJ properly relied on VE testimony that conflicted with the DOT after the VE provided "an analysis based on his own expertise and labor market surveys he conducted").Because the ALJ erred in accepting a VE opinion at odds with the DOT without eliciting a "reasonable explanation" for the variance, Lockwood, 914 F.3d at 91, "the ALJ's step five conclusion was not based on substantial evidence." Roberto, 2021 WL 3912298, at *6.
According to the Commissioner, VE Olds "stated that his testimony was based on his experiences with the small parts assembler job, as well as labor market surveys and job placements for many different kinds of clients." Def. Mem. at 18. This is not an accurate characterization of the hearing transcript. The VE relied on labor market surveys and job placements to explain why he believed that certain other jobs ("document preparer," "final assembler," and "table worker") are no longer "viable jobs." (R. 65.) He did not claim to have seen any labor market surveys or performed any job placements bearing on the number of small parts assembler jobs that can be performed at a sub-sedentary RFC.
D. The Case Should Be Remanded for the Limited Purpose of Determining the Onset Date and Calculating Benefits
Under the Act, a district court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing." 42 U.S.C. § 405(g). Where there is a basis to conclude "that a more complete record might support the Commissioner's decision," the court should remand for further proceedings. See Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999). Where, on the other hand, "the record provides persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose," the appropriate remedy is to remand solely "for calculation and payment of benefits." Parker, 626 F.2d at 235. Ordinarily, this is also the appropriate remedy where the Commissioner has not met his step five burden, and consequentially there is no substantial evidence in the record to support the ALJ's finding that work exists in significant numbers in the national economy that the claimant is capable of performing. See Roberto, 2021 WL 3912298, at *7.
In this case, there is no such evidence. Nor is there any substantial evidence in the record inconsistent with Dr. Ravi's opinion that plaintiff's walker is medically necessary - an opinion which, if accepted, necessarily leads to the conclusion that there are no jobs in the national economy that plaintiff is capable of performing. Thus, "plaintiff has been disabled at least since the date of [her] examination by Dr. [Ravi] on [November 5, 2020]." Colon v. Berryhill, 2017 WL 4570389, at *8 (W.D.N.Y. Sept. 14, 2017), report and recommendation adopted, 2017 WL 4541011 (W.D.N.Y. Oct. 11, 2017).
However, there is a real question as to when the plaintiff became disabled. As the ALJ correctly noted (R. 112), there are no medical records supporting her claimed onset date of August 2, 2015. She was not diagnosed with fibromyalgia until 2017 (R. 452-53), was not diagnosed with diabetes until early 2018 (R. 579), and did not use a walker until 2019. (R. 632.) Determining when a claimant became disabled "is a fact-intensive analysis best suited for the ALJ in the first instance." Johnson v. Kijakazi, 2021 WL 5513491, *at 17 (S.D.N.Y. 2021); see also Colon, 2017 WL 4570389, at *8 (remanding where the court concluded that plaintiff was disabled but "cannot determine with certainty the exact onset date, the determination of which is "best left to the Commissioner"); Raja v. Astrue, 2012 WL 1887131, at *10 (S.D.N.Y. May 23, 2012) (holding that plaintiff was disabled at least by January 1, 2005, but remanding so that the Commissioner could determine whether his "onset date is earlier than January 1, 2005"); Zubizarreta v. Astrue, 2010 WL 2539684, at *7-8 (E.D.N.Y. June 16, 2010) (remanding, even though a "correct application of the [treating physician] rule can only lead to the conclusion that Zubizarreta was disabled," because "the determination of whether his confluence of his knee pain, back pain and obesity was disabling on [May 14, 2003, his alleged onset date] is a determination that is best left to the Commissioner"). Consequently, this action should be remanded for the limited purposes of (i) determining the onset date of plaintiff's disability and (ii) calculating benefits.
VII. CONCLUSION
For the reasons stated above, I recommend, respectfully, that the Decision be REVERSED; that the Commissioner be directed to provide Supplemental Security Income to plaintiff for the period beginning November 5, 2020; and that the case be REMANDED to the Commissioner for the determination of an exact onset date, which may be earlier than November 5, 2020, and for calculation of benefits.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Jessica G. L. Clarke at 500 Pearl St., New York, New York 10007, and to the chambers of the undersigned magistrate judge. Any request for an extension of time to file objections must be directed to Judge Clarke. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).